Trying recently to give some advice about an end-of-waste justification as part of a permit application has been just that – trying. Whilst it is widely thought that substantive waste law is tricky, a more serious and practical difficulty is the position of the regulators, whose individual writs run deep throughout the process. The degree of public confusion now appearing on the part of the Environment Agency and Natural Resources Wales by way of their lack of engagement, is, to say the least, unhelpful.
An initial problem is that of finding the current text of Article 6 of the Waste Framework Directive. It is vexing enough to find that as retained EU law the WFD is still called just that, at least under the current permitting regulations, since there is a real temptation to reach for the actual instrument, especially since, inconveniently, the EU itself decided to amend (the revised) 2008/98/EC with a new set of material in (EU) 2018/851 (with a further revision under way). The regulators’ websites could help by publishing the amended text (as well as the rest of the amended WFD).
Should the reader be remotely interested in the effect of these 2018 amendments on retained EU law, Defra and the Welsh Government posted Guidance: 2018 Waste Framework Directive amendments on Gov.UK (updated 31 August 2021)[i]. The Guidance is still there, but the webpage now includes a banner stating “This guidance was withdrawn on 30 March 2023”, together with the blunt commentary “This publication is out of date. It has been replaced”. The options then available on the webpage, as from 30 March 2023, are “Check if your material is waste” (applicable only in England, the checklist itself being a dubious summary of case law and of certain arrangements hitherto adopted by the EA) or, alternatively, “Get an opinion from the Environment Agency’s definition of waste service”.
Reading on to the second link provided by “Get an opinion [etc.]” (which will be met again below), it transpires that the EA’s definition of waste service will only apply the approach set out in “Check if your material is waste” (being the first of the two links above). What is more likely to put the potential applicant off, however (apart from the stated 3-18 month time estimate for a decision), are the EA’s robust disclaimers: “[8.3] By providing our opinion we shall not be under any obligation to take or refrain from taking any related regulatory steps, including granting consents or permits or refrain from taking enforcement action (or both), that we are responsible for taking”[ii] and “[12.2] we shall not be held liable in contract, negligence or otherwise for the consequences of you following or relying upon comments or views given by us or any acts, omissions, events or circumstances relating to this agreement or with respect to the matters contemplated by it”[iii].
To return to the difficulty in finding the amended text of Article 6, and without wishing to tire anyone with the relevant statutory instruments, I have appended the final version which appears to apply in England and in Wales for the purposes of the Environmental Permitting Regulations 2016 (although there is a very slightly different version in Wales for the purposes of the Waste (Wales) Measure 2010). The underlined text reflects the amendments introduced by the statutory instruments, but the deleted text has not been marked up.
Article 6(1) itself should be a reasonably straightforward test to apply in most cases. In summary, the product (i) is to be used for a specific purpose, (ii) has a market or demand, (iii) satisfies technical and legislative standards and (iv) there will be no overall adverse environmental or human health impacts.
As to the new Art.6(1A), a UK-wide version of Art.6(3) which encourages a ‘harmonised’ test (an approach which carries more plausibility in the EU), there are currently almost no regulations to apply, especially with the uncertainties brought about by the current Waste Quality Protocols Review. As to this Review, the EA webpage on Gov.UK (updated on 31 December 2021, and only applying to England) states[iv]: “There are 13 QPs for a range of waste-derived materials. However, these may now be out of date – for example, they might not meet current technical standards [or] include latest best practice”.
So, too, it is difficult to understand why the additional requirements of Art.6(2) should be regularly invoked at least in England, given that Art.6(4) only requires a decision on the part of a regulator to “reflect” the various matters to which it refers “where necessary”.
Anyone hoping for some legal clarity from the regulators at this point may remember that Defra published Guidance on the legal definition of waste and its application. On finding the webpage, the same notice appears as that which has been added to the 2018 amendments (third para above) with the same links: “This guidance was withdrawn on 30 March 2023 – This publication is out of date. It has been replaced with “Check if your material is waste” [and] “Get an opinion from the Environment Agency’s definition of waste service”.
Natural Resources Wales has a webpage Meeting the end of waste test[v]. Although this page is indexed as “guidance and advice”, it is cursory in the extreme. It advises that that where no harmonised measure is available, or where there is no QP, then in order to carry out an assessment for an individual case “[regard should be had to the following]: waste law principles, revised Waste Framework Directive, relevant case law in England and Wales – the OSS test …”. The webpage (last updated on 30 May 2023) ends with a link to Guidance – Decide if a material is waste or not: general guide[vi] supposedly applying to England, Northern Ireland and Wales. The link conveys the same message as that which we have met before: “This guidance was withdrawn on 30 March 2023 – This publication is out of date”. It has been replaced with the same links as above to “Check if your material is waste” [and] “Get an opinion from the Environment Agency’s definition of waste service”.
In Safety-Kleen v. EA [2020] EWHC 3147 (Admin), the exasperation of Sir Duncan Ouseley, drawing on the judgment of Carnwath LJ in R (OSS) v. EA [2007] EWCA Civ 611, was clear (para.76): “… Searching for logical consistency in the application of the broad term “waste” to the many and varied situations which call for decision as to its application, risks a fool’s errand. This is not because of any failings in the jurisprudence of the CJEU, but because the very exercise itself is misconceived. The situations are too varied for the Framework language to provide for all. … More valuable is a purposive judgment upon the facts relevant to the characterisation of the intentions and actions of the actual holder in relation to the substances at issue”. Both Carnwath LJ and Sir Duncan Ouseley emphasised the importance of an overall value judgment. Indeed, whilst the Courts of England and Wales have been holding out for a purposive interpretation of end-of-waste for many years, this is now the dominant theme in the case law of the ECJ, as to which see Porr Bau Gmbh (C-238/21). The recovery of waste, the preservation of natural resources, the application of the waste hierarchy and the imperative to a circular economy, all drive this approach in every jurisdiction (the EU and the UK).
How can the regulators throughout the UK help? They can assist operators in two ways, both of which reflect the national regulators’ codes.
First, they urgently need to adopt a positive, published approach to end-of-waste justifications which supports circular economy principles. The problem with not having published guidance at all is, of course, the general uncertainty caused to business. Presently, matters are worse because the only general ‘guidance’ material which exists are to be found in connection with getting an opinion from the EA, namely in the document Guidance for the end of waste request form[vii]. This document takes a far from straightforward approach to Article 6. It puts forward an approach which is consistent with an over-application of the precautionary principle, one which relies too much on out-dated case law, and, in short, one which fails to make it clear that, save perhaps for particularly difficult cases, a straightforward application of Art.6(1) of the Waste Framework Directive will suffice. It is not really guidance at all, but an all-embracing document designed to elicit all and any information which may be required for an end-of-waste test.
The second way in which the regulators can help, is to act with confidence as well as with consistency, and adopt the invitation repeated by judges to provide prompt decisions which reflect sensible value judgments as to whether or not the end-of-waste activity in issue promotes, or detracts from, the aims of the circular economy. There are various ways in which this could be achieved, a particularly important outcome being one which ensures consistency amongst officers.
Gordon Wignall 21 June 2023
gordonwignall.co.uk
wiglaw.co.uk
[i] https://www.gov.uk/government/publications/legal-definition-of-waste-guidance/definition-of-waste-2018-waste-framework-directive-amendments#end-of-waste
[ii] https://www.gov.uk/government/publications/get-an-opinion-from-the-definition-of-waste-service/terms-for-using-the-definition-of-waste-service
[iii] https://www.gov.uk/government/publications/get-an-opinion-from-the-definition-of-waste-service/terms-for-initial-advice-on-end-of-waste-status
[iv] https://www.gov.uk/government/publications/waste-quality-protocols-review/waste-quality-protocols-review
[v] https://naturalresources.wales/guidance-and-advice/environmental-topics/waste-management/meeting-the-end-of-waste-test/?lang=en
[vi] https://www.gov.uk/government/publications/legal-definition-of-waste-guidance/decide-if-a-material-is-waste-or-not
[vii] https://www.gov.uk/government/publications/get-an-opinion-from-the-definition-of-waste-service/guidance-for-the-end-of-waste-request-form
Article 6[i]
End-of-waste status
- Waste which has undergone a recycling or other recovery operation is considered to have ceased to be waste if it complies with the following conditions:
(a) the substance or object is to be used for specific purposes;
(b) a market or demand exists for such a substance or object;
(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and
(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.
“1A. Any decision as to whether a substance or object has ceased to be waste must be made—
(a) in accordance with any regulations setting out detailed criteria on the application of the conditions in paragraph 1 to specific types of waste; and
(b) having regard to any guidance published by the appropriate authority for the purposes of this Article.“;
- Any detailed criteria set out in guidance as referred to in paragraph 1A shall ensure a high level of protection of the environment and human health and facilitate the prudent and rational utilisation of natural resources. They shall include:
(a) permissible waste input material for the recovery operation;
(b) allowed treatment processes and techniques;
(c) quality criteria for end-of-waste materials resulting from the recovery operation in line with the applicable product standards, including limit values for pollutants where necessary;
(d) requirements for management systems to demonstrate compliance with the end-of-waste criteria, including for quality control and self-monitoring, and accreditation, where appropriate; and
(e) a requirement for a statement of conformity.
- …
- Where criteria have not been set out as referred to in paragraph 1A(a), the appropriate authority may decide on a case-by-case basis, or take appropriate measures to verify, that certain waste has ceased to be waste on the basis of the conditions laid down in paragraph 1 and, where necessary, reflecting the requirements laid down in points (a) to (e) of paragraph 2, and taking into account limit values for pollutants and any possible adverse environmental and human health impacts.
The appropriate agency may make information about case-by-case decisions and about the results of verification publicly available by electronic means.
- The natural or legal person who:
(a) uses, for the first time, a material that has ceased to be waste and that has not been placed on the market; or
(b) places a material on the market for the first time after it has ceased to be waste,
shall ensure that the material meets relevant requirements under the applicable chemical and product related legislation. The conditions laid down in paragraph 1 have to be met before the legislation on chemicals and products applies to the material that has ceased to be waste.
[i] See reg.3 (as amended) and para.12, Schedule 1A, EPR 2016 (added by the Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019/39 Sch.1 para.1). Underlined words represent words inserted into the Measure.
See reg.3 (as amended) and para.12, Schedule 1A, EPR 2016 (added by the Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019/39 Sch.1 para.1). Underlined words represent words inserted into the Measure.